F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

MAY 19 2005

PATRICK FISHER
Clerk

BOBBY G. LYGHTLE, JR.,

Plaintiff - Appellant,
v.
AARON J. BREITENBACH, Assistant
District Attorney; TERRY
PULLMAN, 18th Judicial District
Judge,

No. 04-3296
(D.C. No. 03-CV-3450-GTV)
(D. Kan.)

Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and ANDERSON, Circuit Judges.

Bobby G. Lyghtle, Jr., appearing pro se, appeals the district courts
dismissal under 28 U.S.C. 1915(e)(2)(B)(iii) of his 42 U.S.C. 1983 suit.

We

The case is unanimously ordered submitted without oral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
*

Lyghtle is currently incarcerated in a Kansas state prison on unrelated

charges, and the district court granted him leave to proceed in this appeal without
prepayment of the entire appellate filing fee. In his opening brief, Lyghtle claims
(continued...)

exercise jurisdiction under 28 U.S.C. 1291 and

AFFIRM .

Lyghtle alleged that Aaron Breitenbach, a state prosecutor, and Terry

Pullman, a state court judge, conspired to have him arrested on false charges.
Specifically, Lyghtle alleged that Breitenbach caused him to be arrested and taken
into police custody despite the fact that the traffic offenses used to justify the
arrest had previously been dismissed. In addition, Lyghtle alleged that
Breitenbach prepared an alias arrest warrant and a bond forfeiture order that were
based on false, deceptive and deceitful facts. With respect to Judge Pullman,
Lyghtle alleged that he conspire[d] to conceal the actions of Mr. Breitenbach and
Mr. Breitenbachs illegal initiation of and participation in the warrant requirement
process. He also alleged that Judge Pullman . . . cause[d him] to be further
confined until an illegal and improper $10,000 own recognizance bond could be
processed.

(...continued)
that the dismissal provisions in 28 U.S.C. 1915(e)(2) are not applicable to him
because he was not incarcerated at the time of the events alleged in his complaint.
He is mistaken in this regard, as 1915(e)(2) is applicable to all in forma
pauperis proceedings. See Stafford v. United States , 208 F.3d 1177, 1179 n.4
(10th Cir. 2000) (holding that the screening procedure in 1915(e)(2) applies to
appeals brought by plaintiffs who are proceeding under the in forma pauperis
scheme in 1915); Benson v. OBrian , 179 F.3d 1014, 1016-17 (6th Cir. 1999)
(following Fifth, Eighth, and Ninth Circuits to hold 1915(e)(2) applies only to
in forma pauperis proceedings); Tucker v. Branker , 142 F.3d 1294, 1296 (D.C.
Cir. 1998) (stating 1915(e)(2)(B) applies to a case filed IFP).
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The district court dismissed sua sponte Lyghtles claims against both
Breitenbach and Pullman based on absolute immunity.

The court explained its

reasoning as follows:
Plaintiffs allegations center on an alias arrest warrant and order for
forfeiture of bond, based on plaintiffs failure to appear at a
scheduled court hearing in a case that had been dismissed three
months earlier. Notwithstanding plaintiffs contention that both
defendants were fully aware the case had been dismissed, this does
not defeat either defendants [absolute] immunity in this case. The
issuance of an alias arrest warrant and order for forfeiture of bond
clearly falls within the state court judges authority. Also, the
prosecutors motion for forfeiture of bond and proposed journal
entry, based on a partys failure to appear at a scheduled hearing,
involves activities by the prosecutor that are intimately associated
with the judicial phase of the criminal process. Although plaintiff
contends the hearing should no longer have been scheduled after the
case had been dismissed, the prosecutor was still functioning as an
advocate for the State in a judicial proceeding.
Lyghtle filed a notice of appeal regarding the dismissal order.
Subsequently, he filed a timely motion under Fed. R. Civ. P. 59(e) to alter or
amend judgment.

In addition to the claims asserted in his complaint, Lyghtle

alleged for the first time in his Rule 59(e) motion that Breitenbach had violated
his constitutional rights by failing to comply with a traffic court order directing
Breitenbach to prepare a journal entry/order reflecting that the court had

Section 1915(e)(2)(B)(iii) provides that [n]otwithstanding any filing fee,

or any portion thereof, that may have been paid, the court shall dismiss the case at
any time if the court determines that . . . the action . . . seeks monetary relief
against a defendant who is immune from such relief.
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dismissed the traffic case at issue. The district court denied Lyghtles Rule 59(e)
motion. To date, plaintiff has not filed a separate or amended notice of appeal to
appeal the order denying his Rule 59(e) motion.
In this appeal, Lyghtle has reasserted the claims that he pled in his
complaint regarding the issuance of the alias arrest warrant and the bond
forfeiture order. In addition, as he did in his motion for reconsideration, he
claims that Breitenbach violated his constitutional rights by failing to comply
with a traffic court order. We conclude that Lyghtle is not entitled to any relief
with regards to the former claims, and that we do not have jurisdiction to consider
the last claim.
We review determinations of absolute immunity de novo.

Scott v. Hern ,

216 F.3d 897, 908 (10th Cir. 2000). Having conducted the required de novo
review, we agree with the district court that Lyghtles claims regarding the alias
arrest warrant and the bond forfeiture order are barred by the doctrine of absolute
immunity. A prosecutor is absolutely immune from liability under 1983 for
damages based on information that is contained in an arrest warrant or the
documentation supporting a warrant unless the prosecutor actually attested to the
truth of those facts.

Id. at 909. This rule is derived from the Supreme Courts

decision in Kalina v. Fletcher , 522 U.S. 118 (1997), where the Court held that a
prosecutor stepped outside the role of prosecutor and into the role of
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complaining witness when she attested to the truth of those facts [supporting a
warrant]. Scott , 216 F.3d at 909.
In this case, Breitenbach did not swear or attest to the truth of the
information contained in the alias arrest warrant and the bond forfeiture order.
Instead, his name and address simply appear on the top of both documents, and he
approved the bond forfeiture order by signing it. Applying

Kalina , these actions

are insufficient to strip Breitenbach of his absolute immunity as a prosecutor, and

Breitenbach is therefore absolutely immune from liability for any claims related to
the alias arrest warrant and the bond forfeiture order.
We also agree with the district court that Judge Pullmans conduct in
signing and approving the alias warrant and the bond forfeiture order cannot form
the basis for liability for damages under 1983. As the district court explained,
[j]udges are protected by absolute immunity in civil rights actions from liability
for damages based on their judicial actions.

See Stump v. Sparkman , 435 U.S.

349, 362-64 (1978). There are only two exceptions to this absolute immunity
from suit: (1) a judge is not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judges judicial capacity; and (2) a judge is not immune
for actions, though judicial in nature, taken in the complete absence of all
jurisdiction.

Mireles v. Waco , 502 U.S. 9, 11-12 (1991). Here, plaintiffs

claims against Judge Pullman all arise out of actions that he took in his judicial
5

capacity. As a result, Judge Pullman is entitled to absolute immunity unless he

acted in the absence of all jurisdiction, which Lyghtle has failed to establish.
Finally, we do not have jurisdiction over Lyghtles claim regarding
Breitenbachs failure to prepare a journal entry/order reflecting that the traffic
court had dismissed the traffic case at issue. As set forth above, after the district
court entered its order and the related judgment dismissing Lyghtles complaint
on July 28, 2004, the following occurred: (1) on August 4, 2004, Lyghtle filed a
timely notice of appeal regarding the dismissal order; (2) on August 10, 2004,
Lyghtle filed a timely motion under Fed. R. Civ. P. 59(e) to alter or amend
judgment, and, for the first time, he asserted his claim regarding the journal
entry/order; and (3) on February 8, 2005, the district court entered an order
denying plaintiffs Rule 59(e) motion. This chronology is critical because the
filing of plaintiffs Rule 59(e) motion caused the underlying judgment to lose its
finality, and this court was then deprived of jurisdiction over the underlying
judgment until February 8, 2005, when the district entered its order denying the
Rule 59(e) motion.

See Stone v. INS , 514 U.S. 386, 402-03 (1995) (stating that a

timely Rule 59 motion divests the appellate court of jurisdiction); Fed. R. App. P.
4(a)(4)(B)(i) (If a party files a notice of appeal after the court announces or
enters a judgmentbut before it disposes of [a Rule 59(e) motion]the notice
becomes effective to appeal [the] judgment . . . when the order disposing of the
6

[Rule 59(e)] motion is entered.). In addition, according to Fed. R. App. P.

4(a)(4)(B)(ii):
A party intending to challenge an order disposing of [a Rule 59(e)]
motion . . . must file a notice of appeal, or an amended notice of
appealin compliance with Rule 3(c)within the time prescribed by
this Rule measured from the entry of the order disposing of the [Rule
59(e)] motion.
As noted above, plaintiff did not assert his claim regarding the journal
entry/order until he filed his Rule 59(e) motion, and the district court implicitly
rejected the claim when it denied the Rule 59(e) motion. As a result, in order to
pursue an appeal regarding the claim, plaintiff was required to file a new or an
amended notice of appeal after the district court entered its order denying the
Rule 59(e) motion, and the notice of appeal had to be filed within thirty days of
the entry of the order.

See Fed. R. App. P. 4(a)(4)(B)(ii) and 4(a)(1)(A). Because

plaintiff has failed to file such a notice of appeal, this court does not have
jurisdiction over the claim regarding the journal entry/order.
Cmty. Health Ctr., Inc. v. Rullan

See Rio Grande

, 397 F.3d 56, 67 (1st Cir. 2005) (holding that

court of appeals did not have jurisdiction over a district court order denying a
Rule 59(e) motion where a new notice of appeal was not filed after the order was
entered by the district court);

Union Pac. R.R. Co. v. Greentree Transp. Trucking

Co. , 293 F.3d 120, 126 n.8 (3d Cir. 2002) (same);

cf. Stouffer v. Reynolds , 168

F.3d 1155, 1172 (10th Cir. 1999) (holding that this court lacked jurisdiction to
7

review the denial of a Rule 60(b) motion where the appellant failed to file an
amended or second notice of appeal after the district court entered an order
denying the motion).
The judgment of the district court is

AFFIRMED . We DISMISS the

portion of this appeal relating to plaintiffs claim regarding the journal

entry/order for lack of jurisdiction. We remind plaintiff that he must continue
making partial payments on court fees and costs previously assessed until such
have been paid in full.

Entered for the Court

Carlos F. Lucero
Circuit Judge